A/HRC/WGAD/2022/79, Opinion No. 79/2022 concerning Mohamed Baba Nadjar (Algeria)

Opinion; Subjects: ALGERIA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Erwägungen (50 Absätze)

E. 1 The Working Group on Arbitrary Detention was established in resolution 1991/42 of the Commission on Human Rights. In its resolution 1997/50, the Commission extended and clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The Council most recently extended the mandate of the Working Group for a three-year period in its resolution 51/8.

E. 2 In accordance with its methods of work,1 on 3 August 2022 the Working Group transmitted to the Government of Algeria a communication concerning Mohamed Baba Nadjar. The Government replied to the communication on 21 September 2022. The State is a party to the International Covenant on Civil and Political Rights.

E. 3 The Working Group regards deprivation of liberty as arbitrary in the following cases: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his or her sentence or despite an amnesty law applicable to him or her) (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); (c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III); (d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V). 1 A/HRC/36/38. United Nations A/HRC/WGAD/2022/79 General Assembly Distr.: General 3 April 2023 English Original: French A/HRC/WGAD/2022/79 2 GE.23-05175 Submissions Communication from the source

E. 4 Mohamed Baba Nadjar, born on 4 January 1984, is an Algerian citizen. His usual place of residence is Karkoura, Ghardaia, Algeria. Prior to his arrest, he was employed in the construction industry as an equipment operator. a. Arrest and detention

E. 5 According to the source, on 23 October 2005, police officers from Ghardaia arrived at the shop of a family member of Mr. Baba Nadjar, looking for him. As Mr. Baba Nadjar was out of town, the police left a written summons for him to report to the Ghardaia police headquarters as soon as possible. There was no mention of the reasons for the summons.

E. 6 According to the source, on 27 October 2005, Mr. Baba Nadjar presented himself at the Ghardaia police headquarters, where he was immediately detained for 96 hours without being shown an arrest warrant. Mr. Baba Nadjar was interrogated by police officers in connection with a murder that had taken place on 20 October 2005, without his lawyer present and without any form of legal assistance. He was prohibited from contacting his family and his lawyer for four days, and was not informed of his right to challenge the lawfulness of his detention before a court.

E. 7 The source explains that the police suspected Mr. Baba Nadjar of having committed the murder that had taken place on 20 October 2005 and arrested and detained him under articles 51, 51 bis, 51 bis (1) and 65 of the Code of Criminal Procedure.

E. 8 During his interrogation, Mr. Baba Nadjar was allegedly put under psychological pressure to confess. He was interrogated for several hours over a four-day period without being examined by a doctor. He denied any involvement in the murder. According to the source, Mr. Baba Nadjar, who belongs to the Beni M’zab minority of the Amazigh people, was also questioned about his Amazigh cultural activism and his activities as part of the Front des Forces Socialistes (Socialist Forces Front) opposition party. The police also suggested that he should testify against another Amazigh activist, who has since died in custody, in exchange for his own release. Mr. Baba Nadjar refused the offer and informed the court of it during his trial.

E. 9 The source notes that Mr. Baba Nadjar was held in custody at the Ghardaia police headquarters from 27 to 31 October 2005. On 31 October 2005, he was brought before the State prosecutor at the Ghardaia court. He was notified of his indictment for premeditated murder, and the prosecutor requested the formal opening of a judicial inquiry. Following the prosecutor’s request, the investigating judge heard Mr. Baba Nadjar’s testimony the same day, in the absence of his lawyer, and ordered that he be placed in pretrial detention in Ghardaia prison.

E. 10 On 6 June 2006, after a one-day trial, the Ghardaia criminal court sentenced Mr. Baba Nadjar to death. Observers have pointed out that the questions put to Mr. Baba Nadjar by the presiding judge focused on his activities as part of the Front des Forces Socialistes opposition party and his activities in support of the Amazigh people. Mr. Baba Nadjar has always denied any direct or indirect involvement in the alleged murder on 20 October 2005.

E. 11 Following his conviction by the Ghardaia criminal court, Mr. Baba Nadjar lodged an appeal on points of law with the Supreme Court. The source explains that at the time, Algerian law did not allow ordinary appeals against criminal court judgments, as the Supreme Court had jurisdiction to rule on points of law but not on the merits of the case. The source points out that criminal court judgments are now subject to appeal in accordance with Act No. 17-07 of 27 March 2017 amending the Code of Criminal Procedure.

E. 12 The source reports that on 13 January 2009, the Supreme Court overturned the judgment of the Ghardaia court and referred the case to the Médéa criminal court. On 27 May 2009, after a one-day trial, the Médéa criminal court sentenced Mr. Baba Nadjar to life imprisonment. The source notes that Mr. Baba Nadjar was once again unable to appeal against the judgment and have the merits of the case and his conviction re-examined. In this A/HRC/WGAD/2022/79 GE.23-05175 3 connection, the source notes that Algeria ratified the International Covenant on Civil and Political Rights in September 1989.

E. 13 On 2 June 2009, another Supreme Court appeal was lodged against the Médéa court’s judgment. The appeal was dismissed on 23 September 2010, rendering the judgment final.

E. 14 The source notes that Mr. Baba Nadjar has been detained in various prisons and is currently being held in Laghouat prison. Since his conviction, Mr. Baba Nadjar has proclaimed his innocence and has gone on hunger strike several times to protest against his conviction and his detention conditions, particularly the lack of medical care for his health problems. The source reports that Mr. Baba Nadjar began to suffer from arthritis, but the prison administration refuses him access to physiotherapy or surgery in a specialized facility. He is given only paracetamol, which is not enough to relieve his pain.

E. 15 The source claims that Mr. Baba Nadjar had access to a lawyer only after being brought before the investigating judge and imprisoned. Although he was assisted by a lawyer during his trials, he had no legal representation while in police custody. He has received no visits from his lawyer since the Supreme Court rejected his appeal in 2010, rendering the judgment against him final.

E. 16 The source reports that Mr. Baba Nadjar is allowed visits from his family for 15 minutes every fortnight. However, the source notes that the prisons in which Mr. Baba Nadjar has been and is being held are far from his family’s home. b. Legal analysis

E. 17 The source argues that the detention of Mr. Baba Nadjar is arbitrary under categories III and V of the working methods of the Working Group. i. Category III

E. 18 According to the source, Mr. Baba Nadjar’s detention is arbitrary since he was arrested without being shown an arrest warrant and without being informed, at the time of arrest, of the reasons for his arrest. The source submits that the manner of Mr. Baba Nadjar’s arrest violated article 9 (1) and (2) of the Covenant.

E. 19 The source also argues that Mr. Baba Nadjar was deprived of his right to take proceedings before a court to decide on the lawfulness of his detention in police custody. Consequently, the source considers Mr. Baba Nadjar’s rights under article 9 (4) of the Covenant to have been violated.

E. 20 Furthermore, the source claims that Mr. Baba Nadjar was not given access to a lawyer following his arrest, during his detention in police custody or during his interrogation by the police. He has been unable to receive any visits from his lawyer since his appeal was rejected by the Supreme Court in 2010. The source concludes that article 14 (3) of the Covenant has been violated.

E. 21 Lastly, the source explains that Mr. Baba Nadjar’s inability to have the merits of his conviction and sentence reviewed by a court constitutes a violation of article 14 (5) of the Covenant, which states that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. ii. Category V

E. 22 The source claims that Mr. Baba Nadjar is being detained because he belongs to the Beni M’zab minority of the Amazigh people and because of his activities in support of the recognition of this people’s cultural rights. According to the source, Mr. Baba Nadjar is also being held owing to his links with the Front des Forces Socialistes opposition party.

E. 23 In this regard, the source notes that during Mr. Baba Nadjar’s interrogation, the police officers asked him to testify against a human rights and Amazigh rights activist, who has since died in custody, in exchange for his own release. Mr. Baba Nadjar refused. The source also points out that during Mr. Baba Nadjar’s trial, the questions asked by the presiding judge of the Ghardaia criminal court focused on Mr. Baba Nadjar’s activities as part of the Front des Forces Socialistes opposition party and in support of the Amazigh people. A/HRC/WGAD/2022/79 4 GE.23-05175

E. 24 Consequently, the source considers that Mr. Baba Nadjar is being detained for discriminatory reasons linked to his activities in defence of Amazigh rights and his ethnic origin. Response from the Government

E. 25 On 3 August 2022, the Working Group transmitted a communication concerning Mr. Baba Nadjar to the Government, requesting it to provide detailed information about him by 3 October 2022 and to guarantee his physical and mental integrity.

E. 26 On 21 September 2022, the Government sent its response, in which it explained that, on 20 October 2005, a person had been doused with fuel and set alight by two other individuals. The person succumbed to his injuries two days later. The criminal investigation police opened an inquiry and Mr. Baba Nadjar was identified as one of the perpetrators. He voluntarily turned himself in to the police on 27 October 2005.

E. 27 On 31 October 2005, Mr. Baba Nadjar was brought before the State prosecutor at the Ghardaia court and charged with premeditated murder by ambush under articles 254 to 257 and 261 of the Criminal Code. The investigating judge ordered his pretrial detention.

E. 28 On 3 May 2006, the investigating judge ordered the transmission of the case file to the Prosecutor General. By an order dated 14 May 2006, the indictments chamber of the Ghardaia court referred Mr. Baba Nadjar to the Ghardaia criminal court, which sentenced him to death on 6 June 2006.

E. 29 Following an appeal on points of law, the Supreme Court overturned the judgment on 18 December 2007 and referred the case back to the same criminal court with a different composition.

E. 30 On 13 January 2009, the Supreme Court transferred the case from the Ghardaia criminal court to the Médéa court for a retrial. On 27 May 2009, the Médéa court sentenced Mr. Baba Nadjar to life imprisonment for premeditated murder by ambush. Following an appeal on points of law by both parties, the judgment became final on 23 September 2010.

E. 31 The Government states that Mr. Baba Nadjar was taken into custody after voluntarily turning himself in to the police on 27 October 2005. In any case, articles 51 and 65 of the Code of Criminal Procedure allow criminal investigation police officers to arrest a person suspected of having committed an offence.

E. 32 According to the Government, Mr. Baba Nadjar was held in police custody for 96 hours from 27 October 2005. The Government states that article 65 of the Code of Criminal Procedure limits the duration of police custody to 48 hours, which can be extended by the State prosecutor for a further 48 hours.

E. 33 Furthermore, the Government notes that national law does not allow the accused to lodge an appeal to challenge the lawfulness of his or her remand in custody when the duration of police custody is very short and does not exceed 96 hours. The Government explains that the purpose of police custody is to allow the criminal investigation police to investigate offences of which they have knowledge and to inform the prosecutor.

E. 34 The Government denies the allegations that attempts were made to pressure Mr. Baba Nadjar into confessing and testifying against another person in exchange for his own release and that he was questioned about his activism as part of the opposition party. The Government regards these allegations as mere assertions by Mr. Baba Nadjar, especially since he has never lodged a complaint on the matter.

E. 35 The Government explains that, at the time of the events in October 2005, the Code of Criminal Procedure did not allow a lawyer to be present during police custody. The Code was amended in 2015 to allow access to a lawyer during police custody. In addition, under article 51 bis (1) of the Code of Criminal Procedure, lawyers are now permitted to visit their clients after police custody has been extended. The Government notes that this amendment illustrates the measures taken by Algeria to promote and protect rights and freedoms.

E. 36 The Government also explains that article 100 of the Code of Criminal Procedure provides that, at the first appearance, the investigating judge shall verify the identity of the A/HRC/WGAD/2022/79 GE.23-05175 5 accused and inform him or her of the charges and of his or her right to remain silent and to choose a lawyer. According to the Government, these requirements were satisfied in the present case, as evidenced by the fact that Mr. Baba Nadjar remained silent at his first appearance. Mr. Baba Nadjar would not have been deprived of his right to a lawyer if he or his family had been able to obtain one.

E. 37 The Government also notes that, under article 123 bis of the Code of Criminal Procedure, detention falls within the prerogative and discretionary powers of the investigating judge. In accordance with article 172 of the same Code, the accused has the right to appeal against the detention order.

E. 38 Concerning the allegations that the presiding judge of the Ghardaia criminal court questioned Mr. Baba Nadjar about his political activities as part of the Front des Forces Socialistes and his support for the Amazigh cause, the Government notes that under article 286 of the Code of Criminal Procedure, the presiding judge has the power to decide on the conduct of the hearing. The presiding judge is therefore entitled to ask the questions he or she deems relevant and productive, while respecting due process. In the present case, the Government notes that the sheet appended to the judgment of 6 June 2006 does not contain any question relating to Mr. Baba Nadjar’s political or other activities. The Government submits that Mr. Baba Nadjar was convicted solely for the offence with which he was charged, and not for his political or other activities.

E. 39 Similarly, the Government disputes that Mr. Baba Nadjar has been subjected to any kind of discrimination. It states that under article 37 of the Constitution, the equality of citizens before the law is guaranteed and discrimination based on birth, race, sex and opinion is prohibited. The Government notes that the law protects every citizen against all forms of discrimination and that Algeria has ratified the International Convention on the Elimination of All Forms of Racial Discrimination. According to the Government, Mr. Baba Nadjar received a fair trial, enjoyed all the safeguards provided for in the Code of Criminal Procedure and has never lodged a complaint alleging a violation of his rights.

E. 40 Regarding the right of appeal, the Government notes that prior to 27 March 2017, the law provided only for appeals on points of law against criminal court judgments. Following an amendment in 2017, first-instance judgments are subject to review by the criminal court of appeal, in line with the second hearing principle guaranteed by the Constitution. Again, the Government affirms that these amendments illustrate the respect that Algeria has for human rights, including the right to a second hearing. Since the amendments to the Code of Criminal Procedure have no retroactive effect, the Ghardaia criminal court judgment of 6 June 2006 and the Médéa criminal court judgment of 27 May 2009 were not subject to appeal. The Government notes that appeals on points of law were lodged against these judgments and that Mr. Baba Nadjar’s death sentence was commuted to life imprisonment as a result.

E. 41 The Government claims that Mr. Baba Nadjar began a hunger strike in 2017 to protest against his conviction, refused to end the strike and was urgently transferred to the prison in Blida for treatment at the city hospital. He was transferred to Koléa prison on 26 October

2021. The Government notes that article 64 of Act No. 05-04 of 6 February 2005 establishing the code on the organization of prisons and the social reintegration of detainees authorizes hunger strikes and provides that the person must make a written statement to the director of the facility explaining the reasons for the strike. The individual is then placed under medical supervision and must be given the necessary care if his or her life is in danger.

E. 42 In addition, all prisoners are guaranteed the right to appropriate care, either at the prison infirmary or, if necessary, at any medical facility, under article 57 of Act No. 05-04. In the present case, Mr. Baba Nadjar and his family have not lodged any complaint alleging that he was deprived of care. The Government points out that Mr. Baba Nadjar has no history of illness or chronic disease, and underwent a medical examination when he arrived at Laghouat prison. His results were normal and Mr. Baba Nadjar was in perfect health. His second medical examination on 3 February 2022 showed the same results. The Government dismisses the source’s claims, stating that Mr. Baba Nadjar underwent medical examinations in each of the prisons where he has been held and that the results show that he is in good health and does not require surgery. A/HRC/WGAD/2022/79 6 GE.23-05175

E. 43 It is also noted that articles 66 and 67 of Act No. 05-04 guarantee the right of the detained person to be visited by family, a religious representative, his or her guardian, an administrator of his or her property, his or her lawyer and any civil servant or other public official for legitimate reasons. Mr. Baba Nadjar, like other inmates, is visited by his family for 30 minutes every fortnight, in accordance with current regulations. He has received 17 visits in the last six months.

E. 44 The Government explains that decisions regarding transfers between prisons are based on several factors, including capacity, procedural expediency, facilitation of hearings and security. Prisoners or their family members are entitled to submit a request for the prisoner to be moved closer to their family. In this case, Mr. Baba Nadjar was transferred from Bordj Bou Arréridj prison to Laghouat prison, located 200 kilometres from his home, so that he could be closer to his family and they could visit him.

E. 45 Lastly, the Government notes that, in accordance with the recommendations of the World Health Organization and the Algerian Ministry of Health, a health protocol was implemented in prisons to prevent the spread of the coronavirus disease (COVID-19). A vaccination campaign was launched and prisoners were given access to the vaccine, as well as medical care.

E. 46 The Government concludes that Mr. Baba Nadjar was arrested and detained in compliance with international human rights law and enjoyed all fair trial guarantees. It therefore does not consider Mr. Baba Nadjar’s arrest or detention to be arbitrary. Additional comments from the source

E. 47 On 29 September 2022, the source submitted additional comments in response to the Government’s reply, reiterating the initial allegations and noting that the Government acknowledges and does not dispute that Mr. Baba Nadjar was arrested and detained. The source emphasizes that mere assertions that lawful national procedures have been followed are not sufficient to rebut the allegations of arbitrary detention.

E. 48 The source contests the version of events as described by the Government and points out that Mr. Baba Nadjar went to the police station not out of a sense of guilt but because police officers had left a summons for him with a member of his family, asking him to report to the police station as soon as possible. The summons merely stated that he must report to the police station and did not explain the purpose of or reasons for the summons, in violation of article 9 (2) of the Covenant.

E. 49 The source notes that the Government does not dispute that Mr. Baba Nadjar was arrested after appearing at the police station, without being informed of the reasons for his arrest, or that he was held in police custody for 96 hours without access to a lawyer and without being able to challenge the lawfulness of his detention before a court, in violation of articles 9 (4) and 14 (2) (b) of the Covenant.

E. 50 According to the source, the Government acknowledges that Mr. Baba Nadjar claimed

to have been pressured to incriminate himself, but is of the view that he has provided no

evidence of this. The source notes that the burden is on the Government to prove that an

individual’s statements were given freely, as noted by the Human Rights Committee in its

general comment No. 32 (2007) on the right to equality before courts and tribunals and to a

fair trial. The source claims that the authorities’ failure to open an investigation into Mr. Baba

Nadjar’s allegations of coercion violates article 14 (3) of the Covenant.

51.

The source also notes that the Government does not deny that the judge questioned

Mr. Baba Nadjar about his ethnic background. The source asserts that neither Mr. Baba

Nadjar’s ethnic background nor his political beliefs were relevant in a murder trial and that

other defendants from majority populations were not questioned about their origin, unlike

Mr. Baba Nadjar, who belongs to the Mozabite group, one of the Amazigh peoples. The

source therefore considers Mr. Baba Nadjar to have been subjected to racial prejudice and

his rights under articles 14 (1) and 26 of the Covenant to have been violated.

52.

With regard to the right of appeal, the source points out that Algeria ratified the

Covenant in 1989 and that, according to a 1989 ruling by the Constitutional Council, any

ratified convention becomes part of and takes precedence over domestic law. The source

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claims, therefore, that the Government was required to implement the provisions of the

Covenant guaranteeing the right to a fair trial.

53.

The source notes that the Government has not presented any evidence of compliance

with international standards with respect to the conditions of Mr. Baba Nadjar’s

imprisonment, even though only the Government holds his medical file and the record of his

family visits. The source stresses that, although the right to a presidential pardon is provided

for in article 91 (8) of the Constitution, there is no law governing the application procedure

or the grounds for pardon, meaning that Mr. Baba Nadjar has no real prospect of having his

sentence reviewed or commuted. The source submits that the ongoing mental stress caused

to Mr. Baba Nadjar by this situation constitutes a violation of article 7 of the Covenant.

Discussion

54.

The Working Group thanks the source and the Government for their submissions.

55.

In determining whether the deprivation of liberty of Mr. Baba Nadjar is arbitrary, the

Working Group has regard to the principles established in its jurisprudence to deal with

evidentiary issues. If the source has established a prima facie case for breach of international

law constituting arbitrary detention, the burden of proof should be understood to rest upon

the Government if it wishes to refute the allegations.2 Mere assertions by the Government

that lawful procedures have been followed are not sufficient to rebut the source’s allegations.3

56.

In the present case, the Working Group notes the Government’s submissions that the

proceedings against Mr. Baba Nadjar were in full compliance with Algerian law.

Nevertheless, even when detention is carried out in conformity with national legislation, the

Working Group must assess whether the application of the legislation was consistent with

international human rights law.4 The Working Group will consider whether the detention of

Mr. Baba Nadjar is arbitrary under the relevant categories provided for in its methods of

work.5

Category I

57.

The source states that, on 27 October 2005, Mr. Baba Nadjar appeared at the police

station in Ghardaia, after police officers had left a summons for him with a member of his

family, without specifying the reasons for the summons. At the police station, he was arrested

without being shown a warrant and immediately remanded in custody for 96 hours, until

31 October 2005. The Government submits in response that Mr. Baba Nadjar voluntarily

turned himself in at the police station on 27 October 2005 and was arrested and held in

custody for 96 hours.

58.

In accordance with article 9 (1) of the Covenant, “no one shall be deprived of his

liberty except on such grounds and in accordance with such procedure as are established by

law”. As the Working Group has previously stated, in order for a deprivation of liberty to

have a legal basis, it is not sufficient for there to be a law authorizing the arrest. The

authorities must invoke that legal basis and apply it to the circumstances of the case. This is

typically done through an arrest warrant6 or order, or equivalent document.7 In addition,

article 9 (2) of the Covenant provides that anyone who is arrested must be informed, at the

time of arrest, of the reasons for the arrest and must be promptly informed of any charges.

59.

The Working Group notes that the Government has not contested the source’s

allegations that the summons did not specify the reasons for the request and that Mr. Baba

Nadjar was not notified of the reasons for his arrest or the charges against him. Consequently,

2 A/HRC/19/57, para. 68.

3 Ibid.

4 Opinions No. 5/2020, para. 71; No. 65/2020, para. 70; and No. 7/2021, para. 60.

5 A/HRC/36/38, para. 8.

6 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,

para. 23.

7 In cases of arrest in flagrante delicto, obtaining an arrest warrant is generally not an option.

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the Working Group concludes that the arrest of Mr. Baba Nadjar had no legal basis and

violated article 9 (1) and (2) of the Covenant.

60.

According to the source, Mr. Baba Nadjar was held in police custody for 96 hours

following his arrest. The source also argues that Mr. Baba Nadjar was deprived of his right

to take proceedings before a court to decide on the lawfulness of his remand in police custody.

The Government notes in response that national law does not allow the accused to lodge an

appeal to challenge the lawfulness of his or her remand in custody when it is very short. It

also notes that, under article 65 of the Code of Criminal Procedure, police custody is limited

to 48 hours, but may be extended for a further 48 hours by the State prosecutor.

61.

According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal

charge shall be brought “promptly” before a judge. Ordinarily, 48 hours is sufficient to satisfy

the obligation to bring a detained person “promptly” before a judge, and any longer delay

must remain absolutely exceptional and be justified under the circumstances.8 Article 9 (3)

of the Covenant also states that pretrial detention must be the exception rather than the rule

and must be ordered for as short a time as possible.9

62.

In the present case, the Government merely notes that article 65 of the Code of

Criminal Procedure limits the duration of police custody to 48 hours, but allows the State

prosecutor to extend it for a further 48 hours. However, the Government does not explain

why Mr. Baba Nadjar’s continued detention was reasonable and necessary to prevent flight,

interference with evidence or the recurrence of crime.10 The Working Group therefore finds

that the Government violated its obligation under article 9 (3) of the Covenant.

63.

Judicial oversight of deprivation of liberty is a fundamental safeguard of personal

liberty and is essential in ensuring that detention has a legal basis.11 Given that Mr. Baba

Nadjar was unable to challenge the legality of his detention, his right to an effective remedy

under article 2 (3) of the Covenant and article 8 of the Universal Declaration of Human Rights

was also violated.

64.

Article 9 (4) entitles anyone who is deprived of liberty by arrest or detention to take

proceedings before a court, in order that the court may decide without delay on the lawfulness

of the detention and order release if the detention is not lawful.

65.

The Government explains in response that national law does not allow the accused to

lodge an appeal to challenge the lawfulness of his or her remand in custody when its duration

is very short and does not exceed 96 hours. However, even if national law does not allow

detained persons to lodge an appeal to challenge the lawfulness of their detention, they must

not be deprived of their rights under international human rights law. Although the

Government claims to have acted in strict accordance with national law, the Working Group

recalls that even when the detention of a person is carried out in conformity with national

legislation, such detention must also be consistent with the relevant provisions of

international law.12

66.

The Working Group recalls that in order to ensure an effective exercise of the right to

challenge the legality of their detention, persons deprived of their liberty should have access,

from the moment of arrest, to legal assistance of their own choosing, in accordance with the

United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of

Anyone Deprived of Their Liberty to Bring Proceedings Before a Court.13 As concluded

below (see Category III), Mr. Baba Nadjar was deprived of this right while in police custody

8 Human Rights Committee, general comment No. 35 (2014), para. 33.

9 A/HRC/19/57, paras. 48–58; and opinions No. 5/2019, para. 26; No. 62/2019, paras. 27–29; and

No. 64/2020, para. 58.

10 Human Rights Committee, general comment No. 35 (2014), para. 38.

11 Opinions No. 35/2018, para. 27; No. 83/2018, para. 47; No. 32/2019, para. 30; No. 33/2019, para. 50;

No. 44/2019, para. 54; No. 45/2019, para. 53; No. 59/2019, para. 51; and No. 65/2019, para. 64; and

the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of

Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, para. 3.

12 See, for example, opinions No. 46/2011, No. 42/2012, No. 50/2017, No. 79/2017, No. 1/2018,

No. 20/2018, No. 37/2018, No. 50/2018 and No. 77/2020.

13 A/HRC/30/37, annex, principle 9.

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and during his appearance before the investigating judge, which took place only 96 hours

after his initial detention. The Working Group considers the deprivation of this right and the

failure to notify him of the reasons for his arrest to have seriously affected Mr. Baba Nadjar’s

ability to exercise his right to challenge the lawfulness of his detention.

67.

Consequently, the Working Group considers Mr. Baba Nadjar’s detention to be in

violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of

the Covenant, and to be arbitrary under category I.

ii.

Category III

68.

According to the source, Mr. Baba Nadjar was not given access to a lawyer following

his arrest, during his detention in police custody or during his appearance before the

investigating judge. Mr. Baba Nadjar was interrogated without his lawyer present and without

any form of legal assistance. The source adds that he has been unable to receive any visits

from his lawyer since the Supreme Court rejected his appeal in 2010, rendering the judgment

against him final. The Government does not deny these assertions but, in its view, the fact

that Mr. Baba Nadjar remained silent on this matter at his first appearance proves that he was

not deprived of his rights.

69.

Under article 14 (3) (b) of the Covenant, all persons deprived of their liberty are

entitled to have adequate time and facilities for the preparation of their defence and to

communicate with counsel of their own choosing. The right to legal assistance by counsel of

their choice must be granted at any time during their detention, including immediately after

the moment of apprehension, and it must be granted promptly.14

70.

The Working Group notes the Government’s response that, at the time of the events

in October 2005, the Code of Criminal Procedure did not allow a lawyer to be present during

police custody. The Code was amended in 2015 to allow access to a lawyer during police

custody and after its extension. Nevertheless, the mere fact that domestic law allows police

custody to continue for 96 hours without access to a lawyer cannot deprive the detainee of

his or her rights under international human rights law. Any legislation that purports to remove

the right to counsel is inherently contrary to international human rights standards. 15 All

persons deprived of their liberty have the right to legal assistance by a lawyer of their choice

at any time during their detention, including immediately after their apprehension, and such

access must be provided promptly.16 The failure to allow Mr. Baba Nadjar access to his

lawyer while in police custody violated his right to have adequate time and facilities for the

preparation of his defence under article 14 (3) (b) of the Covenant and principles 17 and 18

of the Body of Principles for the Protection of All Persons under Any Form of Detention or

Imprisonment. The Working Group considers that this violation substantially undermined

and compromised Mr. Baba Nadjar’s ability to defend himself in any subsequent judicial

proceedings.

71.

The source alleges that during his interrogations, Mr. Baba Nadjar was pressured to

incriminate himself and confess guilt, which he refused to do. The Government denies these

allegations and regards them as mere assertions by Mr. Baba Nadjar. In support of this claim,

the Government merely points out that Mr. Baba Nadjar has never lodged a complaint on the

matter.

72.

Giving detained persons prompt and regular access to members of their family,

independent medical personnel and lawyers is an essential and necessary safeguard for the

prevention of torture as well as for protection against arbitrary detention and infringement of

personal security. 17 In its response, the Government provides no evidence to rebut the

source’s allegations regarding the pressure allegedly exerted on Mr. Baba Nadjar. The

Working Group notes that the onus lies on the Government to demonstrate that it did not

exert pressure on the detainee. The Working Group is of the view that the source made

14 A/HRC/30/37, annex, principle 9 and guideline 8.

15 CCPR/C/VNM/CO/3, paras. 25, 26, 35 and 36.

16 A/HRC/30/37, annex, principle 9 and guideline 8; and A/HRC/45/16, para. 53. See also

CCPR/C/DZA/CO/4, para. 36 (d).

17 Opinion No. 92/2020, para. 72.

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credible claims establishing a violation of Mr. Baba Nadjar’s right not to confess guilt under

article 14 (3) (g) of the Covenant, which the Government has not sufficiently refuted.

73.

Furthermore, the source claims that Mr. Baba Nadjar’s inability to have the merits of

his conviction and sentence reviewed by a court constitutes a violation of article 14 (5) of the

Covenant. The Government acknowledges that the Ghardaia criminal court judgment of

6 June 2006 and the Médéa criminal court judgment of 27 May 2009 were not subject to

appeal, but notes that appeals on points of law were lodged against the judgments and

Mr. Baba Nadjar’s death sentence was commuted to life imprisonment as a result. It also

argues that, following an amendment in 2017, first-instance judgments are subject to review

by the criminal court of appeal, in line with the second hearing principle guaranteed by the

Constitution. However, since Mr. Baba Nadjar was unable to have the merits of his

conviction and sentence reviewed by a court, the Working Group finds a violation of article

14 (5) of the Covenant. The Working Group considers that the violation of Mr. Baba Nadjar’s

right to appeal against his conviction is particularly serious given the gravity of the charges

against him, the source’s uncontested allegation that his trial lasted only one day and the

restrictions imposed by the authorities on his right to counsel while in detention.

74.

The Working Group therefore concludes that the non-observance of the international

norms relating to Mr. Baba Nadjar’s right to a fair trial violated article 14 of the Covenant

and article 10 of the Universal Declaration of Human Rights, and is of such gravity as to give

his detention an arbitrary character under category III.

iii.

Category V

75.

According to the source, the police and the investigating judge questioned Mr. Baba

Nadjar, who belongs to the Beni M’zab minority of the Amazigh people, about his Amazigh

cultural activism and his activities as part of the Front des Forces Socialistes opposition party.

The police also suggested that he should testify against another Amazigh activist in exchange

for his own release. Mr. Baba Nadjar refused the offer and informed the court of it during his

trial.

76.

In its response, the Government notes that the presiding judge is entitled to decide on

the conduct of the hearing and to ask the questions that he or she deems relevant and

productive, while respecting due process. It also denies the allegations that Mr. Baba Nadjar

was pressured into testifying against another person in exchange for his own release and that

he was questioned about his activism as part of the opposition party. In the present case, the

Government notes that the sheet appended to the judgment of 6 June 2006 does not contain

any question relating to Mr. Baba Nadjar’s political or other activities. It submits that

Mr. Baba Nadjar was convicted solely for the offence with which he was charged, and not

for his political or other activities.

77.

The Working Group notes that the present case is one of several that it has received

in recent years concerning the deprivation of liberty of persons belonging to the Amazigh

people.18 It takes note of the source’s claims that neither Mr. Baba Nadjar’s ethnic origin nor

his political beliefs were relevant in a murder trial, and observes that the Government has

provided no detailed information regarding the relevance of Mr. Baba Nadjar’s political

activities as part of the Front des Forces Socialistes and his support for the Amazigh cause.

The Working Group notes that the Government has failed to provide the judgment and the

annex to which it refers, and that it has merely stated that the annex does not contain any

questions relating to Mr. Baba Nadjar’s political or other activities. The Working Group

recalls that if the source has presented a prima facie case for breach of international law

constituting arbitrary detention, the burden of proof should be understood to rest upon the

Government if it wishes to refute the allegations. The Working Group also notes its findings

in other cases in which other activists and members of the Amazigh community were

arbitrarily detained in Algeria, particularly because they belonged to the same ethnic minority

as Mr. Baba Nadjar and because of their political activism.19 Consequently, the Working

Group finds credible the source’s allegations that Mr. Baba Nadjar was deprived of his liberty

18 Opinions No. 34/2017; No. 53/2020; and No. 15/2022.

19 Ibid.

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on discriminatory grounds, that is, on the basis of his national, ethnic or social origin and his

political or other opinions, in violation of articles 2 and 7 of the Universal Declaration of

Human Rights and articles 2 (1) and 26 of the Covenant. Mr. Baba Nadjar’s deprivation of

liberty is thus arbitrary under category V.

iv.

Concluding remarks

78.

The Working Group is troubled by the source’s claims concerning Mr. Baba Nadjar’s

state of health. He has reportedly gone on hunger strike several times to protest against his

detention conditions, he suffers from arthritis and he has no access to medical care or surgery

in a specialized facility. While it takes note of the Government’s response refuting these

allegations, the Working Group recalls that according to article 10 (1) of the Covenant and

rules 1, 24, 27 and 118 of the United Nations Standard Minimum Rules for the Treatment of

Prisoners (the Nelson Mandela Rules), all persons deprived of their liberty must be treated

with humanity and with respect for their inherent dignity, including by being allowed to enjoy

the same standards of health care that are available in the community. In particular, rule 27 (1)

requires that all prisons ensure prompt access to medical attention in urgent cases, and that

prisoners who need specialized treatment or surgery be transferred to specialized institutions

or civil hospitals. The Working Group urges the Government to ensure that conditions in all

places of deprivation of liberty in Algeria are compatible with international standards.

Disposition

79.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Mohamed Baba Nadjar, being in contravention of

articles 2, 3 and 7–10 of the Universal Declaration of Human Rights and articles 2, 9,

14 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I, III and V.

80.

The Working Group requests the Government of Algeria to take the steps necessary

to remedy the situation of Mr. Baba Nadjar without delay and bring it into conformity with

the relevant international norms, including those set out in the Universal Declaration of

Human Rights and the Covenant.

81.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Baba Nadjar immediately and accord

him an enforceable right to compensation and other reparations, in accordance with

international law.

82.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Baba Nadjar and to take appropriate measures against those responsible for the violation

of his rights.

83.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

84.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Baba Nadjar has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Baba

Nadjar;

(c)

Whether an investigation has been conducted into the violation of Mr. Baba

Nadjar’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Algeria with its international obligations in line with the

present opinion;

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(e)

Whether any other action has been taken to implement the present opinion.

85.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

86.

The Working Group requests the source and the Government to provide the

above-mentioned information within six months of the date of transmission of the present

opinion. However, the Working Group reserves the right to take its own action in follow-up

to the opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

87.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.20

[Adopted on 17 November 2022]

20 Human Rights Council resolution 51/8, paras. 6 and 9.

Volltext (verifizierbarer Originaltext)

GE.23-05175 (E) 081123 081123

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fifth session, 14–18 November 2022

Opinion No. 79/2022 concerning Mohamed Baba Nadjar (Algeria)

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

In accordance with its methods of work,1 on 3 August 2022 the Working Group

transmitted to the Government of Algeria a communication concerning Mohamed Baba

Nadjar. The Government replied to the communication on 21 September 2022. The State is

a party to the International Covenant on Civil and Political Rights.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/79

General Assembly

Distr.: General

3 April 2023

English

Original: French

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Submissions

Communication from the source

Mohamed Baba Nadjar, born on 4 January 1984, is an Algerian citizen. His usual

place of residence is Karkoura, Ghardaia, Algeria. Prior to his arrest, he was employed in the

construction industry as an equipment operator.

Arrest and detention

According to the source, on 23 October 2005, police officers from Ghardaia arrived

at the shop of a family member of Mr. Baba Nadjar, looking for him. As Mr. Baba Nadjar

was out of town, the police left a written summons for him to report to the Ghardaia police

headquarters as soon as possible. There was no mention of the reasons for the summons.

According to the source, on 27 October 2005, Mr. Baba Nadjar presented himself at

the Ghardaia police headquarters, where he was immediately detained for 96 hours without

being shown an arrest warrant. Mr. Baba Nadjar was interrogated by police officers in

connection with a murder that had taken place on 20 October 2005, without his lawyer present

and without any form of legal assistance. He was prohibited from contacting his family and

his lawyer for four days, and was not informed of his right to challenge the lawfulness of his

detention before a court.

The source explains that the police suspected Mr. Baba Nadjar of having committed

the murder that had taken place on 20 October 2005 and arrested and detained him under

articles 51, 51 bis, 51 bis (1) and 65 of the Code of Criminal Procedure.

During his interrogation, Mr. Baba Nadjar was allegedly put under psychological

pressure to confess. He was interrogated for several hours over a four-day period without

being examined by a doctor. He denied any involvement in the murder. According to the

source, Mr. Baba Nadjar, who belongs to the Beni M’zab minority of the Amazigh people,

was also questioned about his Amazigh cultural activism and his activities as part of the Front

des Forces Socialistes (Socialist Forces Front) opposition party. The police also suggested

that he should testify against another Amazigh activist, who has since died in custody, in

exchange for his own release. Mr. Baba Nadjar refused the offer and informed the court of it

during his trial.

The source notes that Mr. Baba Nadjar was held in custody at the Ghardaia police

headquarters from 27 to 31 October 2005. On 31 October 2005, he was brought before the

State prosecutor at the Ghardaia court. He was notified of his indictment for premeditated

murder, and the prosecutor requested the formal opening of a judicial inquiry. Following the

prosecutor’s request, the investigating judge heard Mr. Baba Nadjar’s testimony the same

day, in the absence of his lawyer, and ordered that he be placed in pretrial detention in

Ghardaia prison.

10.

On 6 June 2006, after a one-day trial, the Ghardaia criminal court sentenced Mr. Baba

Nadjar to death. Observers have pointed out that the questions put to Mr. Baba Nadjar by the

presiding judge focused on his activities as part of the Front des Forces Socialistes opposition

party and his activities in support of the Amazigh people. Mr. Baba Nadjar has always denied

any direct or indirect involvement in the alleged murder on 20 October 2005.

11.

Following his conviction by the Ghardaia criminal court, Mr. Baba Nadjar lodged an

appeal on points of law with the Supreme Court. The source explains that at the time,

Algerian law did not allow ordinary appeals against criminal court judgments, as the Supreme

Court had jurisdiction to rule on points of law but not on the merits of the case. The source

points out that criminal court judgments are now subject to appeal in accordance with Act

No. 17-07 of 27 March 2017 amending the Code of Criminal Procedure.

12.

The source reports that on 13 January 2009, the Supreme Court overturned the

judgment of the Ghardaia court and referred the case to the Médéa criminal court. On 27 May

2009, after a one-day trial, the Médéa criminal court sentenced Mr. Baba Nadjar to life

imprisonment. The source notes that Mr. Baba Nadjar was once again unable to appeal

against the judgment and have the merits of the case and his conviction re-examined. In this

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connection, the source notes that Algeria ratified the International Covenant on Civil and

Political Rights in September 1989.

13.

On 2 June 2009, another Supreme Court appeal was lodged against the Médéa court’s

judgment. The appeal was dismissed on 23 September 2010, rendering the judgment final.

14.

The source notes that Mr. Baba Nadjar has been detained in various prisons and is

currently being held in Laghouat prison. Since his conviction, Mr. Baba Nadjar has

proclaimed his innocence and has gone on hunger strike several times to protest against his

conviction and his detention conditions, particularly the lack of medical care for his health

problems. The source reports that Mr. Baba Nadjar began to suffer from arthritis, but the

prison administration refuses him access to physiotherapy or surgery in a specialized facility.

He is given only paracetamol, which is not enough to relieve his pain.

15.

The source claims that Mr. Baba Nadjar had access to a lawyer only after being

brought before the investigating judge and imprisoned. Although he was assisted by a lawyer

during his trials, he had no legal representation while in police custody. He has received no

visits from his lawyer since the Supreme Court rejected his appeal in 2010, rendering the

judgment against him final.

16.

The source reports that Mr. Baba Nadjar is allowed visits from his family for

15 minutes every fortnight. However, the source notes that the prisons in which Mr. Baba

Nadjar has been and is being held are far from his family’s home.

Legal analysis

17.

The source argues that the detention of Mr. Baba Nadjar is arbitrary under categories

III and V of the working methods of the Working Group.

Category III

18.

According to the source, Mr. Baba Nadjar’s detention is arbitrary since he was

arrested without being shown an arrest warrant and without being informed, at the time of

arrest, of the reasons for his arrest. The source submits that the manner of Mr. Baba Nadjar’s

arrest violated article 9 (1) and (2) of the Covenant.

19.

The source also argues that Mr. Baba Nadjar was deprived of his right to take

proceedings before a court to decide on the lawfulness of his detention in police custody.

Consequently, the source considers Mr. Baba Nadjar’s rights under article 9 (4) of the

Covenant to have been violated.

20.

Furthermore, the source claims that Mr. Baba Nadjar was not given access to a lawyer

following his arrest, during his detention in police custody or during his interrogation by the

police. He has been unable to receive any visits from his lawyer since his appeal was rejected

by the Supreme Court in 2010. The source concludes that article 14 (3) of the Covenant has

been violated.

21.

Lastly, the source explains that Mr. Baba Nadjar’s inability to have the merits of his

conviction and sentence reviewed by a court constitutes a violation of article 14 (5) of the

Covenant, which states that everyone convicted of a crime shall have the right to his

conviction and sentence being reviewed by a higher tribunal according to law.

ii.

Category V

22.

The source claims that Mr. Baba Nadjar is being detained because he belongs to the

Beni M’zab minority of the Amazigh people and because of his activities in support of the

recognition of this people’s cultural rights. According to the source, Mr. Baba Nadjar is also

being held owing to his links with the Front des Forces Socialistes opposition party.

23.

In this regard, the source notes that during Mr. Baba Nadjar’s interrogation, the police

officers asked him to testify against a human rights and Amazigh rights activist, who has

since died in custody, in exchange for his own release. Mr. Baba Nadjar refused. The source

also points out that during Mr. Baba Nadjar’s trial, the questions asked by the presiding judge

of the Ghardaia criminal court focused on Mr. Baba Nadjar’s activities as part of the Front

des Forces Socialistes opposition party and in support of the Amazigh people.

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24.

Consequently, the source considers that Mr. Baba Nadjar is being detained for

discriminatory reasons linked to his activities in defence of Amazigh rights and his ethnic

origin.

Response from the Government

25.

On 3 August 2022, the Working Group transmitted a communication concerning

Mr. Baba Nadjar to the Government, requesting it to provide detailed information about him

by 3 October 2022 and to guarantee his physical and mental integrity.

26.

On 21 September 2022, the Government sent its response, in which it explained that,

on 20 October 2005, a person had been doused with fuel and set alight by two other

individuals. The person succumbed to his injuries two days later. The criminal investigation

police opened an inquiry and Mr. Baba Nadjar was identified as one of the perpetrators. He

voluntarily turned himself in to the police on 27 October 2005.

27.

On 31 October 2005, Mr. Baba Nadjar was brought before the State prosecutor at the

Ghardaia court and charged with premeditated murder by ambush under articles 254 to 257

and 261 of the Criminal Code. The investigating judge ordered his pretrial detention.

28.

On 3 May 2006, the investigating judge ordered the transmission of the case file to

the Prosecutor General. By an order dated 14 May 2006, the indictments chamber of the

Ghardaia court referred Mr. Baba Nadjar to the Ghardaia criminal court, which sentenced

him to death on 6 June 2006.

29.

Following an appeal on points of law, the Supreme Court overturned the judgment on

18 December 2007 and referred the case back to the same criminal court with a different

composition.

30.

On 13 January 2009, the Supreme Court transferred the case from the Ghardaia

criminal court to the Médéa court for a retrial. On 27 May 2009, the Médéa court sentenced

Mr. Baba Nadjar to life imprisonment for premeditated murder by ambush. Following an

appeal on points of law by both parties, the judgment became final on 23 September 2010.

31.

The Government states that Mr. Baba Nadjar was taken into custody after voluntarily

turning himself in to the police on 27 October 2005. In any case, articles 51 and 65 of the

Code of Criminal Procedure allow criminal investigation police officers to arrest a person

suspected of having committed an offence.

32.

According to the Government, Mr. Baba Nadjar was held in police custody for 96

hours from 27 October 2005. The Government states that article 65 of the Code of Criminal

Procedure limits the duration of police custody to 48 hours, which can be extended by the

State prosecutor for a further 48 hours.

33.

Furthermore, the Government notes that national law does not allow the accused to

lodge an appeal to challenge the lawfulness of his or her remand in custody when the duration

of police custody is very short and does not exceed 96 hours. The Government explains that

the purpose of police custody is to allow the criminal investigation police to investigate

offences of which they have knowledge and to inform the prosecutor.

34.

The Government denies the allegations that attempts were made to pressure Mr. Baba

Nadjar into confessing and testifying against another person in exchange for his own release

and that he was questioned about his activism as part of the opposition party. The

Government regards these allegations as mere assertions by Mr. Baba Nadjar, especially

since he has never lodged a complaint on the matter.

35.

The Government explains that, at the time of the events in October 2005, the Code of

Criminal Procedure did not allow a lawyer to be present during police custody. The Code

was amended in 2015 to allow access to a lawyer during police custody. In addition, under

article 51 bis (1) of the Code of Criminal Procedure, lawyers are now permitted to visit their

clients after police custody has been extended. The Government notes that this amendment

illustrates the measures taken by Algeria to promote and protect rights and freedoms.

36.

The Government also explains that article 100 of the Code of Criminal Procedure

provides that, at the first appearance, the investigating judge shall verify the identity of the

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accused and inform him or her of the charges and of his or her right to remain silent and to

choose a lawyer. According to the Government, these requirements were satisfied in the

present case, as evidenced by the fact that Mr. Baba Nadjar remained silent at his first

appearance. Mr. Baba Nadjar would not have been deprived of his right to a lawyer if he or

his family had been able to obtain one.

37.

The Government also notes that, under article 123 bis of the Code of Criminal

Procedure, detention falls within the prerogative and discretionary powers of the

investigating judge. In accordance with article 172 of the same Code, the accused has the

right to appeal against the detention order.

38.

Concerning the allegations that the presiding judge of the Ghardaia criminal court

questioned Mr. Baba Nadjar about his political activities as part of the Front des Forces

Socialistes and his support for the Amazigh cause, the Government notes that under article

286 of the Code of Criminal Procedure, the presiding judge has the power to decide on the

conduct of the hearing. The presiding judge is therefore entitled to ask the questions he or

she deems relevant and productive, while respecting due process. In the present case, the

Government notes that the sheet appended to the judgment of 6 June 2006 does not contain

any question relating to Mr. Baba Nadjar’s political or other activities. The Government

submits that Mr. Baba Nadjar was convicted solely for the offence with which he was

charged, and not for his political or other activities.

39.

Similarly, the Government disputes that Mr. Baba Nadjar has been subjected to any

kind of discrimination. It states that under article 37 of the Constitution, the equality of

citizens before the law is guaranteed and discrimination based on birth, race, sex and opinion

is prohibited. The Government notes that the law protects every citizen against all forms of

discrimination and that Algeria has ratified the International Convention on the Elimination

of All Forms of Racial Discrimination. According to the Government, Mr. Baba Nadjar

received a fair trial, enjoyed all the safeguards provided for in the Code of Criminal Procedure

and has never lodged a complaint alleging a violation of his rights.

40.

Regarding the right of appeal, the Government notes that prior to 27 March 2017, the

law provided only for appeals on points of law against criminal court judgments. Following

an amendment in 2017, first-instance judgments are subject to review by the criminal court

of appeal, in line with the second hearing principle guaranteed by the Constitution. Again,

the Government affirms that these amendments illustrate the respect that Algeria has for

human rights, including the right to a second hearing. Since the amendments to the Code of

Criminal Procedure have no retroactive effect, the Ghardaia criminal court judgment of

6 June 2006 and the Médéa criminal court judgment of 27 May 2009 were not subject to

appeal. The Government notes that appeals on points of law were lodged against these

judgments and that Mr. Baba Nadjar’s death sentence was commuted to life imprisonment as

a result.

41.

The Government claims that Mr. Baba Nadjar began a hunger strike in 2017 to protest

against his conviction, refused to end the strike and was urgently transferred to the prison in

Blida for treatment at the city hospital. He was transferred to Koléa prison on 26 October

2021. The Government notes that article 64 of Act No. 05-04 of 6 February 2005 establishing

the code on the organization of prisons and the social reintegration of detainees authorizes

hunger strikes and provides that the person must make a written statement to the director of

the facility explaining the reasons for the strike. The individual is then placed under medical

supervision and must be given the necessary care if his or her life is in danger.

42.

In addition, all prisoners are guaranteed the right to appropriate care, either at the

prison infirmary or, if necessary, at any medical facility, under article 57 of Act No. 05-04.

In the present case, Mr. Baba Nadjar and his family have not lodged any complaint alleging

that he was deprived of care. The Government points out that Mr. Baba Nadjar has no history

of illness or chronic disease, and underwent a medical examination when he arrived at

Laghouat prison. His results were normal and Mr. Baba Nadjar was in perfect health. His

second medical examination on 3 February 2022 showed the same results. The Government

dismisses the source’s claims, stating that Mr. Baba Nadjar underwent medical examinations

in each of the prisons where he has been held and that the results show that he is in good

health and does not require surgery.

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43.

It is also noted that articles 66 and 67 of Act No. 05-04 guarantee the right of the

detained person to be visited by family, a religious representative, his or her guardian, an

administrator of his or her property, his or her lawyer and any civil servant or other public

official for legitimate reasons. Mr. Baba Nadjar, like other inmates, is visited by his family

for 30 minutes every fortnight, in accordance with current regulations. He has received

17 visits in the last six months.

44.

The Government explains that decisions regarding transfers between prisons are based

on several factors, including capacity, procedural expediency, facilitation of hearings and

security. Prisoners or their family members are entitled to submit a request for the prisoner

to be moved closer to their family. In this case, Mr. Baba Nadjar was transferred from Bordj

Bou Arréridj prison to Laghouat prison, located 200 kilometres from his home, so that he

could be closer to his family and they could visit him.

45.

Lastly, the Government notes that, in accordance with the recommendations of the

World Health Organization and the Algerian Ministry of Health, a health protocol was

implemented in prisons to prevent the spread of the coronavirus disease (COVID-19). A

vaccination campaign was launched and prisoners were given access to the vaccine, as well

as medical care.

46.

The Government concludes that Mr. Baba Nadjar was arrested and detained in

compliance with international human rights law and enjoyed all fair trial guarantees. It

therefore does not consider Mr. Baba Nadjar’s arrest or detention to be arbitrary.

Additional comments from the source

47.

On 29 September 2022, the source submitted additional comments in response to the

Government’s reply, reiterating the initial allegations and noting that the Government

acknowledges and does not dispute that Mr. Baba Nadjar was arrested and detained. The

source emphasizes that mere assertions that lawful national procedures have been followed

are not sufficient to rebut the allegations of arbitrary detention.

48.

The source contests the version of events as described by the Government and points

out that Mr. Baba Nadjar went to the police station not out of a sense of guilt but because

police officers had left a summons for him with a member of his family, asking him to report

to the police station as soon as possible. The summons merely stated that he must report to

the police station and did not explain the purpose of or reasons for the summons, in violation

of article 9 (2) of the Covenant.

49.

The source notes that the Government does not dispute that Mr. Baba Nadjar was

arrested after appearing at the police station, without being informed of the reasons for his

arrest, or that he was held in police custody for 96 hours without access to a lawyer and

without being able to challenge the lawfulness of his detention before a court, in violation of

articles 9 (4) and 14 (2) (b) of the Covenant.

50.

According to the source, the Government acknowledges that Mr. Baba Nadjar claimed